
Book_U-^^ 



M^ .pj- jy?, 

MEMORIAL, ^c 



THE VIRGINIA TAZOO COMPANY. 



CONGRESS 



Amtell states- 



Washington : 
PRINTED BY WILLIAM DUANE ^ SON. 

1803. 



TO THE HONORABLE 



THK 



^EjY,iTE AND HOUSE OS REPRESEJVTATIVES 



OF THE 



aniteO ©tates. 



THE memorial of the Virginia Yazoo 
Company, 

HUMBLY SHEWETH— 

THAT in the year 178$-, the state of 
Georgia offered a cession of part of its western 
territory to the United States, obviously to dis- 
charge the debt incurred by them in defence 
of that country against the Indians, which 
was, by the United States (as was presumed) 
deemed not advantageous. 

In July of 1788, the United States pro- 
posed to receive a cession of all the territorial 
claim of Georgia west of the Apalachicola, 
&c. containing, as is believed, about forty 
millions of acres, at the price of /// ^^^ ^%^ 
dollars, a small portion only considered as 
specie, the balance certificates. 



( * ) 

These transactions were in truth the 
principal inducement which led the Virginia 
Company to make propositions to the legisla- 
ture of Georgia at the session of 1789 ; not as 
a subject of speculation, no such thing was 
ever intended or attempted, but sincerely de- 
signing a settlement in that country, with so- 
ber and industrious citizens, whenever leave 
to effect that purpose might have been regu- 
larly obtained of the general government, and 
to have been accompanied by civil and mili- 
tary officers appointed according to law. 

The Company deputed two of their mem- 
bers to wait on the legislature and present their 
petition, and thereby proposing for the tract 
of country included within the following boun- 
see peti- dary, '' beginning at the mouth of Bear Creek, 
licated^^*^" ou the south sidc of the Tennessee river, run- 
ning thence up the said Creek to the head or 
source, thence a due west course, supposed to 
be twenty miles, to the Tombigby or twenty 
mile Creek, thence down the same to latitude 
thirty three, thence along the said latitude a 
due west course to the Mississippi, thence up 
the said river to the northern boundary line of 
this state, thence along the said line a due east 
course to the Tennessee river, thence up the 
said river to the beginning. '' To give sixty 
thousand dollars, payable in the currency of 
the state or any liquidated debts against the 
State." 

See pro- Among othcr proceedings had upon the 

ceedhigs petition, the senate ordered a committee to 
cated"^^ confer with the memorialists on the subject of 
the bill and petition. The house of repre- 
sentatives made the same order, and that the 
committee consist of a member from each 



( 5 ) 

county. Iirthe various conferences there did 
not appear even a wish by any member of the 
committees, to change the mode of payment 
proposed. 

In due time the bill predicated upon the ^ ,, 
petition stated, passed into an act, which granting 
2:rarited to the Virsjinia Yazoo Company, pre- ^'^'^^'^^^^ 
emption of the land stated in their memorial, or less, and 
and designated by the same lines of boundary ^'f^^ ^"r^ 
for the amount of 93,741 dollars ; and if pay- '^'^^^''^ ' 
ment made v/ithin two years to the treasurer, 
his receipt authorised the governor to sign and 
deliver a grant to the company. 

In a short time after the passing the act, sce his re- 
tvv^o small payments at different periods, were '^^^P'^ ^"- 
made to the treasurer, in the paper currency 
of the state, in part payment of the purchase. 

Within the two years, the whole amount 
due, was at the treasury office tendered to the 
treasurer, and receipt demanded to entitle to a 
grant. Tender refused, without assigning 
any reason therefor. The tender was in the 
liquidated papers and debts of the state ac- 
knowleged such, and to be genuine, v/hich 
receipt is as follows : 

Acknoiulegemerit cf the Treasurer of Georgia^ of the 
tender made, of payment, by the Virginia Tazoo 
Company, 

STATE OF GEORGIA. 

I, John Meals, treasurer of the said state, 
do hereby acknowlege and certify, that on the 
12th day of December, in the year 1791, per- 
sonally appeared before me at the treasury 



( 6 ) 

office, John Watts, esquire, a member of the 
Virginia Yazoo Company, invested with full 
powers by the said company, to pay into the 
treasury of the state, the balance still due of 
the consideration and price of a certain tract 
of country, contracted for and purchased by 
the said company, from the legislature of this 
state, agreeable to an act for disposing of cer- 
tain vacant lands or territory within this state; 
and the said John Watts, did accordingly in 
the presence of George Handley, Benjamin 
Porter, and Anderson Watkins, produce, 
count out, and tender to me, as treasurer 
of the said state, in behalf of the said Virgi- 
nia Yazoo Company, certificates and orders 
on the treasury for claims liquidated and 
signed by persons legally authorized to issue 
the same for debts due and ov/ing from this 
state, amounting to the sum of ^21, 5 19 11 4 
sterling, which is equal to the amount of 
92,226 dollars, and fjths of a dollar, which 
sum, together with the payments heretofore 
made, and received into the treasury in part 
payment of the lands aforesaid, amounts to 
the sum of 93,741 dollars, the price stipulat- 
ed for the said tract of country in the act of 
assembly before m.entioned. And the said 
Jno. Watts, Esquire, did accordingly demand 
of me, in the name, and in behalf of the said 
company, to receive the certificates and or- 
ders on the treasury now tendered, and to 
certify the receipt of the same as treasurer of 
this state, to entitle the said company to a 
grant of the lands aforesaid, in consequence of 
their stipulations with the legislature, and the 
act of assembly before cited ; which sum of 
y^ 21,519 11 4 sterling, equal to the amount 
of 92,226 dolls, and f?ths of a dollar, in the 
aforesaid liquidated debts, now tendered to 



( 7 ) 

me, I did refuse to receive and certify as a 
payment for the balance due by the said com- 
pany for the lands aforesaid. 

Given under my hand, as treasurer of 
the said state, at my office, in the town of 
Augusta, on the date first above mentioned. 

JOHN MEALS, Treasurer. 

Witness, 

GEORGE HANDLEY, 
B. PORTER, 
ANDERSON WATKINS. 



f Annexed to the preceding, J 
GEORGIA. 

By his excellency, Governor Telfair, governor 
and commander in chief, in and over the 
state aforesaid. 

To all to zvhom these presents shall come, Greeting : 

KNOW YE, That John Meals, Esq. is 
treasurer of the state of Georgia, and that 
Thomas Watkins, Esq. is secretary of the 
honorable the senate of the said state. There- 
fore, all due faith, credit, and authority, arc, 
and ought to be had and given to the annexed 
documents by them respectively subscribed. 

In testimony whereof, I have hereunto 
set my hand, and caused the seal of the said 
state to be affixed, at the state house in Au* 



( 8 ) 

gusta, this 24th day of December, 1791, and 
in the sixteenth year of the independence of 
the United States of America. 

(SEAL.) ED WD. TELFAIR. 

Bi/ his Excelkna/s command, 

(Signed) JOHN MILTON, Sec'ri^. 

Proof is now adduced to shew, that 
through every stage of the business, and par- 
ticularly at the time the bill passed into an act, 
and after it became a law, not only specie was 
not contemplated by the legislature, but that 
it was their professed intent by that law, to 
meet the mode of payment proposed by the 
petition of the Virginia Company ; and this 
arrises from, 

1st. The petition contemplated and pro- 
posed such mode of payment only. 

2d. The conferences of committees ap- 
pointed for that purpose with the agents of 
the company, and no shadow of alter ation from 
the mode of payment proposed by the peti- 
tion, even wished by any of the gentlemen 
forming the committees. 

5d. The act itself recognising the peti- 
tion or memorial, thereby ingrafting it as part. 

See protest 4th. The protcst of the minority after the 

amhentica- p^gg^g^ ^f ^\^q \yi\\^ grounded upon the precise 
mode of payment stated in the memorial of 
the Virginia Company. This protest recog- 
nised by deposition of Seaborn Jones, and of 
Joseph Habersham, two of that minority, and 
by the deposition of the printer. 



( » ) 

5th. The testimony of five gentlemerl of 
the majoritj-of that legislature, to wit : 

STATE OF GEORGIA, 

Green County, 

I do hereby certify, that I was a member 
of the house of representatives of the general 
assembly of this state in the year 1789, when 
and at which session a part of the western ter- 
ritory of this state Vv^as sold to a company of 
persons stiled and called the Virginia Yazoo 
Company. As well as I recollect, I voted in 
favour of the sale, and did myself fully under- 
stand at that time, that the said Virginia 
Yazoo Company by the terms of the contract 
made, had of right the privilege to pay for the 
said territory so purchased of the general as- 
sembly, in the state certificates and orders on 
the treasury, for claims liquidated at their 
nominal or expressed amount or value, and I 
believe such was the general understanding, 
and received opinion of the general assembly, 
and how that omission happened in the law I 
do not know. Given under my hand, this 
17th day of October, 1803. 

CSignedJ WM, FITZPATRICK, 

Test, F. JOHNSON. 



STATE OF VIRGINIA. 

Fluvamia Couniy, 

This day came Francis Johnson before 
me, one of the commonwealth's justices, in 
B 



( 10 ) 

and for said county, and made oath that Wm. 
Fitzpatrick esqvure, signed and subscribed 
the within certificate in his presence. Given 
under my hand this 28th of November, 1803, 

r Signed; JEDEDIAH JOHNSON- 



/ do hereby declare^ that I was a mem- 
ber of the legislature of the state of Georgia 
in the year 1789, at the session of which a part 
of the vacant territory of said state was sold to 
a company stiled the Virginia Yazoo Compa- 
ny, in payment for which, it was understood 
as I then conceived and still think, the state 
was to receive its audited certificates and o- 
ther liquidated claims of the same nature, 
under which impression I voted in favor of 
the said sale, believing it to be the interest 
of the state to redeem its papers, and at the 
same time doing justice to the individual hol- 
ders of them, as early as possible, 

fSignedJ JOHN SHELMAN. 

Louisville^ 11th Ncvemher^ 1803. 

(The same afHdavit hy Mr. Jcrhnson.) 



STATE OF GEORGIA. 

November 14f/i, 1803. 

I do hereby certify and declare that I 
was a member of the legislature of the state 



{ 11 ) 

aforesaid in the year 1789^ at the session of 
which a part of the vacant territory of said 
state was sold to a company stiled the Virgi- 
nia Yazoo Compan5% in payment for which it 
Avas understood as I then conceived, and still 
think, was to have been made either in the 
then paper medium in circulation, audited 
certificates or other liquated demands against 
the said state. Given under my hand the 
day and year as above. 

(Signed J J. APPLING. 

(The same affidavit by Mr. Johnson.) 



GEORGIA. 



Columbia County, 



Personally appeared before me, Neil 
Cleveland, esq. and after being duly sworn 
on the Holy Gospels of God, saith, he was a 
member of the legislature of the aforesaid 
state in the year, 1789 and 1790, when a sale 
of the western part of the said state was made 
to the Virginia, South Carolina, Tennessee 
companies, and that this deponent voted in the 
affirmative on the passage of the law for the 
sale of the aforesaid land, and that his impres- 
sions at the time of the sale was, that the 
state securities or certifies were to be received 
in payment for the said lands. 

(Signed J NEIL CLEVELAND. 

Sworn to this, 14th November, 1803, before Peter 
Crawford, y- P. ex, off. 



( 12 ) 

STATE OF GEORGIA. 

Hancock County^ to wit : 

I do hereby certify that I was a member 
of the Senate of the legislature of this state in 
the year 1789, at which session a part of the 
western territory of this state was sold to a 
company of persons stiled and called the Vir- 
ginia Yazoo Company, and that I voted in fa- 
vor and for the said sale. I further certify 
that specie was not during the progress of the 
transaction offered by the Virginia, asked by 
the legislature, or contemplated by either par- 
ty. That the Virginia Yazoo Company, of- 
fered in payment for the said territory, the 
state certificates and orders on the treasury of 
the state for claims liquidated. And that no 
other kind of payments was by the legislature 
at that time expected as 'twas clearly so un- 
derstopd, and how the omission happened in 
the law I do not know. 

In witness whereof, I have hereunto 
set my hand and name, this 19th Oc- 
tober, 1803. 

fSignedJ JAMES EVANS. 



STATE OF GEORGIA, 

Hancock County, sc. 

This day major James Evans of the coun- 
ty aforesaid, who has subscribed the above 
certificate, came before me, one of the com- 



( 13 ) 



mon wealth justices of the peace in and for 
the said county and made oath to the truth of 
fhe foregoing certificate in due form. 

In witness whereof, I have hereunto 
set my hand and seal, this 1 9th of 
October, 1803. 

(Signed} B. SHIVERS, J. P. (l. s.) 



GEORGIA. 

Hancock County. 

By Martin Martin, clerk of the superior court 
of said county. 

To all to whom these presents may ccme^ Greeting : 

KNOW YE, That Barnaby Shivers, 
esquire, whose signature is affixed to the fore- 
going affidavit, is an acting justice of the peace 
lor said county. 

Therefore full faith credit and authority 
are justly due to his official attestation as 
such. 

In testimony whereof, I havehere- 
^ X unto set my hand and seal of the 

^ '-' county at office, this 1 9th, October, 

1803. 

(Signed) MARTIN MARTIN, 

Clerk Superior Court* 



( 14 ) 

S Sf/"*"* "^^ which they add the testimony arising 

theuSated from the report of the committee of the senate, 
^"i^'!o^' to whom was referred, (in consequence of re- 
" '''^" fusal of tender by the treasurer, the payment 
offered by the Virginia Company) the petition 
of the company, and therein stating their ori- 
ginal petition, mode of payment therein set 
forth and proposed, their compliance, bona 
fide, with every thing incumbent on them to 
perform, to render the contract on their part 
executed and complete, the refusal of tender 
by the treasurer, without assigning any reason 
therefor, and praying the legislature to give 
directions to their treasurer to receive, he, 
and which is as follows : 

*' In senate, Dec. 17th, 1791, The com- 
mittee to whom was referred the memorial of 
the Virginia Yazoo Company, report, that 
they have duly considered the same, and find 
it to contain a true statement of facts," there- 
fore recommend the following resolution : 

^^ Resolved, That the state treasurer be di- 
rected to receive in payment for the lands sold 
to the Virginia Yazoo Company, specie, paper 
medium, or any liquidated demands against 
this state, provided the payment be made at 
or before the 21st inst»" 

Although on the question, it passed in 
the negative, yeas 4, nays 5, yet the testimo- 
ny arising from the report of a committee in 
every respect competent to such investigation, 
and professedly appointed for such purpose, is 
respectable, and must have weight. 

The amount of this solemn and concur- 
rent testimony is believed competent fully to 



f 15 ) 

evince, that the express intent of the legisla- 
ture, by their act of 1789, was to stipulate the 
same mode of payment as the Virginia Com- 
pany had proposed, and thereby meet the pro- 
position contained in their memorial, which 
in the act they notice, and therein ingraft.— 
And it will be worthy of observation, that the 
testimony in general, applies to the act not 
only when in the character of a bill suscepti- 
ble of modification, but at the time of passing, 
and when passed into a solemn legislative act. 

The conclusion, (it is presumed) must 
necessarily be, that the Virgiana Yazoo Com. 
pany having performed every thing incumbent 
upon them to render the contract executed 
and complete, they were entitled to their grant 
for the specific territory purchased. 

Some of the gentlemen of the majority, it 
is true, have not sworn to their signed decla- 
ration, and the company had not the means, 
by process, to compel ; but surely what they 
have declared and signed may be fairly pre- 
sumed to be truth, especially when corrobo- 
rated by others who have made oath. Their 
signed declarations are proved to be genuine 
by the deposition of Francis Johnson, who 
subscribed as a witness, and although infor- 
mal is believed to be sufficiently luminous to 
make efficient impression. 



STATE OF VIRGINIA, 

Fluvanna County, ss, 

THIS day, Francis Johnson came before 
jne, Jedediah Johnson, one of the common- 



( 16 ) 

wealths justices in and for the said county^ 
and made oath, that in the month of Septem- 
ber last, he was employed by David Ross, 
Esq. on the part of the Yazoo Company, to 
repair to the state of Georgia, and there to 
make application to such of the gentlemen 
who composed the legislature of that state in 
the year 1789, as voted in the affirmative of 
the contract made with the said company dur- 
ing that session for part of the vacant territory 
belonging to the said state, as could with con- 
venience at this period be met with for affida- 
vits and certificates, to prove the nature and 
understanding of the contract as to what was 
to be received in payment by the state for the 
territory then contracted for. That in the 
progress of this business, he applied severally 
to Mr. Middleton Woods, of Elbert county, 
col. Harman Reynolds, of Clarke county, and 
Mr. Archer Gresham, of Greer^ county, who 
were members of that legislature, and voted 
in the affirmative of that sale as they told him, 
for affidavits or certificates comprizing their 
belief on understanding of what kind of pay- 
ments the real contract embraced, whether 
gold or silver, paper medium, funded or liqui. 
dated claims, or what ? That they severally 
refused to give any affidavit or certificate upon 
the subject : that he also applied to maj. Da- 
vid Gresham, of Green county, one of the se- 
nate that year, and v/ho also voted in the 
affirmative of the said sale ; that major Gres- 
ham informed him his recollection was clear 
that the Virginia Company had, agreeably to 
his idea and understanding of the contract of 
right, the privilege to pay for the territory so 
sold and purchased, in the paper medium of 
the state, certificates and orders on the trea- 
sury for claims liquidated against the state, 



I 



( 17 j 

but being in the legislature of that slate in the 
year 1795, when the kincis were again sold by 
the legislature, be would not grant an affida- 
vit or certificate unless the Virginia Company 
would promise not to use it to the prejudice 
of the purchasers of 1795, and if they would 
make ^that assurance, he would make an affi- 
davit comprehending his belief and under- 
standing of the contract. 

That of those Vv^ho voted in the affirma- 
tive of the said contract, from the best infor- 
mation he received, tliere are dead, Messrs. 
Bisset and Osborrie, of the senate, Messrs. 
Little, Love, and Weed, and by some inform- 
ed that Mr. Watts was also dead, and by others 
that he removed to the western country — re- 
moved and absent from the state, Messrs. 
Few, M'Intosh, Fletcher, and Williamson, 
and to Messrs, Kerr, Mackintosh, and Oneal 
he did not apply. 

This deponent further states, that he was 
instructed to apply and get copies and extracts 
from the minutes or journals of senate and 
house of representatives of Georgia, of certain 
resolves, &.c. which were denied him, and for 
further and more full information upon that 
point, he refers to copies of his memorandums, 
and letters of the 23d October last, and 9th 
November, hereto subjoined to the secretary 
of the senate and house of representatives, as 
also their answers thereto of the 9th instant, 
also annexed-— he further states, that after, 
those communications had passed the said se- 
cretary and clerk, jointly made application to 
the house of representatives, by maj. Charl- 
ton, a member of that house, for instructions 
how to act, (the memorandum and communi- 

C 



( 18 ) 

cations accompanying the application) which 
v/ere ordered to lie on the table — this infor- 
mation he received from the said secretary 
and clerk. 

fSignedJ FR. JOHNSON. 

Subscribed and sxuorn to before me^ this 28th Novem- 
ber^ 1803. Given under my hand as a justice of 
the peace, in and for the county first above menti' 
ojied, 

CSigned) JEDEDIAH JOHNSON. 



To such depositions as there are, the seal 
of the state authenticating is wanted. This 
is admitted, and here again there were no 
means to compel that justi^ce to be done the 
Virginia company which was their due. Ap- 
plication was made to the secretary of state to 
authenticate with the seal of the state, it was 
refused unless the governor would specially 
direct it. His excellency was applied to and 
refused to direct or permit it to be done, as 
appears from the deposition of George Hol- 
man, which is as follows ; 

STATE OF GEORGIA. 

City of Augusta, 

Before me, John Wilson, one of the jus- 
tices of the inferior court of the county of 
Richmond and state aforesaid, and intendant 
of the city of Augusta in the said county and 
state, personally came and appeared, George 
Holman, at present of the said place, and being 
duly sworn, made oath : That on Wednesday 
the 8th instant, he applied in Louisville, the 



( 19 ) 

seat of government, to Horatio Marbury, Esq. 
the secretary of state for the said state of 
Georgia, and requested the said secretary to 
procure the governor's testimonial and seal of 
the state, to authenticate more fully, that Wil- 
liam Robertson, Esq. is secretary of the se- 
nate, and that Hines Holt, Esq. is clerk of the 
house of representatives of the state of Georgia, 
aad also, that John Wilson, esquire, is one of 
the justices of the inferior court of the county 
of Richmond in the said state — the names of 
which William Robertson and Hines Holt, are 
to certain extracts from the journals of the ge 
neral assembly of the said state for the year one 
thowsand seven hundred and eighty-nine and 
and one thousand seven hundred and ninety- 
one, hereunto annexed, and the name of the 
said John Wilson to a certain aiUdavit made 
before him by one Seaborn Jones, Esq. of the 
city aforesaid, also hereunto annexed, but was 
ansv\^ered and told by the said secretary of 
state that it could not be done unless his ex- 
cellency the governor would pass an executive 
order for that purpose. That, in consequence 
thereof (his excellency Governor Milledge be- 
ing at his seat near Augusta) he, this depo- 
nent, on the 10th instant, waited in person on 
his excellency governor Milledge, and after 
explaining to him the nature of the application 
made on Wednesday last to the secretary of 
state, and the reference to the governor, his 
excellency refused to order or permit the said 
testimonial to be given. And this deponent 
doth further say, that he was two weeks or 
upwardsin Louisville aforesaid during the late 
session of the general assembly of this state, 
and is personally acquainted with William Ro- 
binson and Hines Holt, before mentioned, 



( 20 ) 

and doth know that they severally acted, the 
former as secretary of the senate, and the lat- 
ter as clerk of the house of representatives, and 
doth verily believe that they have been duly 
and regularly appointed as such. And he 
doth further say that he was present when the 
extracts hereunto annexed were taken from the 
journals, which he particularly examined, and 
verily believes they were correctly extracted. 

(Signed J GEORGE HOLMAN. 

Stuorn to before me, December 13, 1802. 

f Signed J JOHN WILSO^, I. P. 



Other testimony was expected to appear 
from the journals of the senate and of the 
house of representatives of Georgia, applica- 
tion was regularly made to the proper officers 
at their respective offices, and copies of such 
extracts asvv^ere required were r^^fused by them 
to be given or made, not feeling themselves at 
liberty to certify any thing(as they were pleased 
to say) relative to Yazoo, as by their joint let- 
ter to and deposition of Francis Johnson will 
appear, which letters are as follows : 



Louisville^ November 9th^ 1803. 
SIR, 

The extracts required by my communi- 
cation of the 23d uhimo, it is indispensably 
requisite that they should be at this time.— 
They are conceived by the Virginia Yazoo 
company to be all important, and I trust you 



{ 21 ) 

have had sufficient time and opportunity to 
make them out. I have been detained already 
much longer ihan I could have expected and 
much to the injury of my business. I trust 
therefore any longer delay will not be con- 
templated or permitted. The copies before 
pointed out were, I believe, first a copy of the 
resolution of the senate in the year 1790, de- 
claratory of their understanding of the contract 
made with the Virginia Yazoo Company in 
the year 1789, by the legislature of this state 
for a part of their vacant or western territory, 
as it respects the mode or subjects of the paj^- 
ments to be made by the said company for 
the said territory. 

Secondly, A copy of the resolution of the 
senate for repaying to the Virginia Yazoo 
Company, the money by them paid into trea- 
sury of this state in the year 1790, in part per- 
formance of their contract for the said territo- 
ry ; this resolution if such there be, probably 
passed in the ye^r 1794 or 1795. 

Thirdly, Whether any other, save the first 
petition, was presented by the Virginia Ya- 
zoo Company to the session or assembly of 
1789, concerning or in any wise touching the 
subject of the western or vacant territory of 
this state, upon this point I wished a certifi- 
cate. 

Hoping and intreating you not longer to de- 
tain me, I remain with the highest esteem, &c. 

fSignedJ F. JOHNSON, 

To the Secretary of the Senate, 



( 22 ) 

An exact copy of the above last mention^ 
ed letter was made by Mr. Johnson and direc* 
ted " To the clerk of the house of representa- 
thes,^^ 

Their joint answer is as follows : 

Louisville^ 9th Nov, 1803. 
SIR, 

YOUR communication of the 23d ulto 
and letter of this day we have before us, and 
notice the contents. 

After obtaining advice on the subject, 
WE, from the diversity of opinion do not feel 
at liberty to certify any thing relative to 
Yazoo ! ! ! 

As the state of Georgia has disposed of 
the territory in question to the union, it is 
thought adviseable in her officers to embarrass 
the general government as little as possible on 
that subject. 

The state of Georgia, we have reason to 
believe, will withhold nothirfg which will tend 
to the furtherance of any object the United 
States may have in view. 

The legislature is now in session, and 
should you be dissatisfied with our proceed- 
ings, we advise you to apply to them, and in 
every instance we shall feel ourselves bound 
by their decision. 

We are with respect and consideration, 
Sir, 

Your obedient servants, 

rSignedJ WILL. ROBERTSON, 

Secretary to the Senate^ 

HINES HOLT, 

Clerk House Rep. 
FRANK JOHNSON, Esq. 



( 23 ) 

Itwas stated by the commissioners in their 
report to congress last session, that the Vir- 
ginia Company withdrew the money from the 
treasury, which they had paid in part of the 
purchase made. 

There is no doubt but the honorable gen- 
tlemen had, what they presumed ground for 
such statement, but in truth, the fact is not so. 
Facts stated will illustrate and evince. 

After the tender and refusal as stated, the 
Virginia Company hoping from time to time, 
the honorable the legislature of Georgia, would 
do them that justice they felt themselves enti. 
tied to, at their session of 1795, deputed John 
B. Scott to make application to that legislature, 
for a fulfilment of the contract stated, and if 
necessary to make some sacrifices to the state 
in order to obtain the grant in an amicable 
manner, without delay or disputes, he was in- 
structed so to do, but he had no authority to 
do any act which •>ught to impair, or in any 
manner afiect the original contract : he found 
the legislature not in a temper to accept his 
propositions of accommodation for the former 
sale, as they were deeply engaged in selling 
the same lands wdth additional tracts to a sett 
of new purchasers. The object of Mr. Scott's 
mission being thus unatainable, he had no fur- 
ther powders to act for the company ; and it is 
here to be observed, that upon his return from 
Georgia, at the first meeting of the company, 
he informed them that he had inconsiderately 
accepted of the money which had been paid 
into the treasury, in part of the price of the 
land, which he was willing to pay to them ; 
this information was received with astonish- 
ment, and immediately there was an unani- 



) 24 ( 

mous protest against this transaction, which is 
as follows : 

*' That he (John B. Scott) having inad- 
vertently accepted of the said money from the 
treasurer, and was ready to deliver it unto 
them ; but, they unanimously refused to ac- 
cept of it, and in the most express terms deny, 
that they either gave any orders for withdrawing 
the money, or had any such intention. And 
they not only disavow the right of receiving 
the said money, but they declare it is, and 
ever has been, their uniform intention, to pay 
up the balance, whenever the government of 
Georgia shall perform their part of the con- 
tract, and permit a grant to issue, agreeable 
to the original purchase." 

The Virginia Company determined as 
far as they could to understand the transaction 
(though they know it could not affect their 
title) deputed a messenger to obtain copies of 
such documents as they su|lposed would be il- 
lustrative of it, that is to say, copy of the re- 
solution of the legislature if such there was 
directing the treasurer to re-pay, and which, 
(if such there be) was by the proper officers 
refused to be given. 

From the treasurer was required, copy 
of receipt (if such there was) given by John 
B. Scott, for money said to be received by him, 
as agent of the Virginia Yazoo Company, per- 
haps in 1795, and paid into the treasury by 
the said company, in the year 1790, in part 
payment of their purchase, and any order of 
authority by which the said John B. Scott 
withdrew that money, if any such authority is 
filed. To which the treasurer returned the 
following answer : 



SIR, 



( 25 ) 

TREASURY OFFICE, GEORGIA. 

Louisville^ November 9th ^ 1803. 



I HAVE searched this office, and have 
not been able to find either of, or any such 
papers, mentioned in the above letter. 

I am. Sir, 

Your most obedient, 

fSignedJ EDWIN MOUNGER. 

Mr, Francis Johnsoju 



It is understood to be insinuated, that 
the Virginia Company are indirectly concern- 
ed in the purchases said to be made from the 
legislature of Georgia in 1795, and perhaps 
accompanied with a wish, that belief should 
be attached thereto. The Virginia Company 
professing themselves at all times to have 
been governed by the strictest principles of 
honor and probity, to wipe off, as far as de- 
pends upon themselves individually, the insi- 
nuation as dishonorable as it is unjust, have 
made their solemn appeal to the searcher of 
hearts, that they never were nor are either as 
a company, nor individually, nor in any other 
way or manner, originally or as assignees, di- 
rectly or indirectly concerned in the purchases 
said to be made in 1795. It is true, that it 
appears that John B. Scott, one of the mem- 
bers of the Virginia Yazoo Company, has 
taken part in those purchases, and until the 
D 



( 26 ) 

late report of the commissioners upon the bu- 
siness and transactions of the session of the 
Georgia legislature in 1795, in that work the 
Virginia Yazoo Company were absolutely ig- 
norant of the relation in which he stood to the 
companies then formed, but whatever impro- 
priety or blame may appear to arise from that 
transaction, it cannot with truth or justice 
apply to the Virginia Company as such, nor to 
individuals of that company, other than him- 
self : except the present glance (the Virginia 
Company having done so from necessity) they 
do not wish further to interfere in the transac- 
tions of 1795, of the purchases then made, 
unless rendered necessary and urged thereto, 
in defence of their just right, but if so, they 
presume they are able to adduce such authori- 
ty as to evince, that those presumed purcha- 
sers, and all having notice, claiming under 
them (and this will be shewn to be more ex- 
tensive than at present probably presumed) in 
point of right and justice (notwithstanding 
their holding the evidence of legal grants) 
cannot have more than equal pretension with 
the Virginia Yazoo Company. 

The only suggestion that has been at any 
time hinted against the absolute right of the 
Virginia Company, to their grant for the se- 
ven millions of acres of land more or less, 
that has appearanc.e of diiliculty even in a court 
of law is this, that the act itself not specially 
stipulating that liquidated papers of the state 
might be paid, the act is not susceptible of 
explanation any other way than from itself. 

It is confidently believed that on this 
precise point, the law is otherwise, which go- 
verns the exposition of statutes by which any 
contract is formed. 



( 27 ) 

The act of the legislature under which 
the Virginia Company claim, has all the vali- 
dity and force of a contract, and admits of 
similar construction. 

In defining the meaning of those clauses 
which relate to payment, latitude of construc- 
tion is admissable ; they are ambiguous, not 
special. The memorial proposes a specific 
mode of payment : the act cannot be properly 
construed as an alteration thereof. The w^ords 
of the law are, the amount of 93,000 dollars ; 
but neither specie, paper money, or certificates 
are mentioned. How is the intention to be 
ascertained ? It is necessary to recur to the 
proposition on which the act is founded. To 
it the preamble refers, and it must be consi- 
dered as constituting in fact a part of the act, 
and as ingrafted therein. In any uncertainty 
of construction, whether from ambiguity, from 
a deficiency or profuseness of expression, by 
the act, reference must be had to the memorial 
for the due ascertainment of the meaning. 
This mode of reasoning, is presumed, to be 
correct, and it is deemed equally so to state 
that the testimony of the members of a legis- 
lature is admissable evidence in a court of 
equity, to explain any ambiguity in their le- 
gislative act ; and to explain the intent where 
a contract is thereby formed, (when a muni- 
cipal regulation it is admitted to be other- 
wise, because here a rule prescribed is given 
for action) because the legislature acts in its 
moral character, and is taken as a moral per- 
son. 

A few adjudications (from amongst a va- 
riety) arc extracted from Viners abridgment* 



( 23 ) 

brid'^' ment Evcrv tiling "wliich is within the intent of 

voi."i9, p. the makers of the act, though not within the 
516, case letter, is as strongly within the act as that 
Zoiich's which is within the letter, and the intent also. 

case. 

Sn^ V3 ^^^^ words of statutes are not to be con- 

studd. ^ sidered only, but rather the intent of the matter 
is to be weighed, for many times things which 
are within the words of statutes are not within 
the j&z^r'y/Vw of them, "whioh extends no far ^ 
ther than the intent of the makers w^hich is 
the principal thing to be considered. 



Note. The intent of the act is always to be re- 

Wiibams, gr^I.J^.(^|^ 2iX\(\ to such purposc only the words 
Berkley, ought to be construcd. 



Case of The intent ought to be found partly from 

ph^skums ^^ words, and partly from the mischief they 
intend to remedy. 

Page 519, Constructions are to be made of the whole 

^J!f^^- act according: to the intent of the makers, and 

Per Evre, . *^ , i i - 

chief jus- so sometimes are to be expounded against 
^^^^- the letter to preserve the intent, 

stradiing, ''pj^e intent of the makers may be collect^ 

Morgan, cd from the cause or necessity of making the 
act, or by the words in other parts of the act, 
or hy Joreign circumstances, * 

Case 82. In acts that are to be construed accord- 

^^^s«aitn jj^g to the intent and meaning of the makers 
** of them, the original intent and meaning is 
to be observed. 

To these may be added the reading and 
decision of Puffendorf and Vattel, on the ex- 
position of legislative acts forming a contract 
with individual members of the society ; and 



( 29 ) 

distinguishing such from" laws prescribing a 
rule of civil conduct. 

The sovereign authority of a state may 
be contemplated in two distinct capacities ; 
the one being the exercise of this authority in 
prescribing municipal regulations for the con- 
duct of the citizens ; the other in the capacity 
of an agent for the state, in matters of con- 
tract and nes^ociation. The former comnre- 
hends all those acts of the legislature which 
operate over the whole community, and apply 
themselves universally to the transactions of 
the people. These are rules of civil conduct 
prescribed for the regulation of society ; and^ 
as applied to the conduct of men, dictate the 
rules of right and wrong. Acts of this de- 
scription are properly laws ; and as the cir- 
cumstances of mankind in a state of society 
are liable to mutations, a change of these mu. 
nicipal precepts is thereby rendered necessa- 
ry ; from whence originates the authority of 
the legislature to alter, amend or repeal them, 
and substitute others in their place, as ap- 
pearances may direct or policy dictate. This 
power is a necessary concomitant of the le- 
gislative authority ; and, having its origin in 
justice, is a foundation principle in the social 
compact, and devolves, therefore, on succeed- 
ing legislatures by delegation ; but this prin- 
ciple, so well founded and so necessary to be 
exercised in the case of lav;s, if applied to 
other acts of the government, would become 
the instrument of injustice and the agent of 
despotism. ''Hence," says PufFendorf, "we 
'» must take care to distinguish the other acts 
" of sovereigns from their laws, least any 
" should imagine that all ihcirjiist donations, 
" alienations and compacts, may be retracted 



( so ) 

*' by themselves of their successors. For 
" upon these acts a right is obtained by other 
*' men, which ought not to be taken from 
*' them against their consent." As, in all 
forms of government^ there must be a moral 
agency attached to the sovereign power, which 
shall hold the tenure of the public property, 
and represent the nation in matters of contract 
and negociation ; it follows, that this agency, 
in respect to its contents, must be subject to 
the same rules of right and wrong, and under 
the control of the same principles of justice, 
which govern the transactions of private in- 
dividuals. 

The body politic or public agency of a 
state, then, with respect to its contracts, 
stands in'the same relation to the persons with 
whom the contract is made, and subject to 
the same obligations, that individuals are in 
similar circumstances ; and as the contract of 
an individual will bind his heirs, and all others 
claiming under him, so the contract of a cor- 
poration binds its members in eternal succes- 
sion, to wdiich the moral agency of a state 
bears a just and definable analogy. 

The moral agency of the state of Geor- 
gia, from the powers and qualities adherent 
thereto, might have made to the Virginia 
C n ripany a sale of any portion of her unappro- 
] iUited territory, without any exercise what- 
'Vf'v of the legislative authority for that pur- 
- if the existing iav/s at that time had 
V vided for such a measure. But, as such 
r .-visions had not been made, it became ne» 
- ary to enact a law, directing the state 
s.cy in the case contemplated. In this case, 
aerefore, the sovereign legislative power and 



( 31 ) 

the incidental power of selling were exercised 
in co-operation ; and before the moral agency 
of the state could effect the contract, an act 
of legislation was necessary to prescribe the 
riiles by which the transaction should be go- 
verned. Accordingly an-act was passed. After 
the passage of this act, w^hich operated as an 
express declaration of what the state agency 
willed to be done, as well as a legislative di- 
rection, as to the manner of executing that 
will, the governor, under the direction of this 
law, and in observance to that will, was, cer- 
tain stipulations being complied with by the 
company, to carry the latter into effect, in 
compliance with and according to the provi- 
sions of the former. 

In this transaction may be discerned the 
exercise of the sovereign will in two distinct 
capacities : the first, as a legislature prescrib- 
ing rules ; the second, as a moral person dis- 
posing of a part of its property according to 
these rules. After the passing of this law, 
it became legal to sell in this method. It was 
an act of the body politic, authorised and sanc- 
tioned by law. And, as this contract was 
not dissolved by any failure of the company, 
in- the performance of the actual conditions 
contemplated, but carried, so far as the same 
was practicable, under the subsequent irregu- 
larities of the opposite contracting party, vir- 
tually into effect, it ought to be viewed, (to 
the extent at least dependant on the act of the 
company) as equitably standing on similar 
grounds, not with contracts imperfect or exe- 
cutory ; but of contracts already in a state of 
execution. It could not, therefore, be affect- 
ed by any thing ex post facto, nor its obliga- 



( 32 ) 

tion impaired by any subsequent legislative 
act or disposition. 

in the formation of the contract imder 
consideration, the legislature of the state of 
Georgia acted not by any intermediate com- 
misson, but directly in its capacity as amoral 
agent. The formalities customary in engage- 
ments between man and man, must, of course,; 
be dispensed witli. These, from the mode 
adopted by the sovereign will for employing 
this agency, and the nature of the agent itself, 
could not, in the usual mode of acting, apper- 
tain. It becomes of course necessary, and is 
admissable, to give to the whole transaction 
some liberality of construction, to fill up what 
may justly be considered tacit, without vio- 
lating the evident meaning contemplated ; to 
add what, by undoubted testimony, may be 
evinced was in actual intendment by the par- 
ties. In support of this general principle, au- 
thorities may be adduced, tending to establish 
that the contract, as understood, at the period 
of formation, is that which at all subsequent 
periods ought to be acknov/ledged. 

(Vattel, Lib. 2, sec. 268) '^ The inter- 
pretation of every treaty and every act ought 
to be made according to certain rules proper 
to determine the sense of them, such as the 
parties concerned must naturally have under- 
stood, when the act was prepared and accept- 
ed. The question, in the interpretation of a 
treaty or any act whatsoever, is to know what 
the contracting powers have agreed upon, in 
order to determine precisely, on any particu- 
lar occasion, Vv hat has been promised and ac-^ 
cepted . that is to say, not only what one of 
the parties has had the intention to promise, 



( 33 ) 

but also what the other has reasonably and 
sincerely thought to be promised ; what has 
been suiEeiently declared to him, and upon 
which he must have regulated his acceptance." 

*' If the sense in any place of a dis- 
course," says PufFendorf, " be expressed 
clearly and plainly, the doubtful or obscure 
phrases are to be interpreted by those plain 
and familiar ones." 

" The interpretation ought to be made 
in such a manner, that all the parts appear 
consonant to each other ; that what follows 
agrees with what went before." (Vatt. L. 2, 
sec. 285.) 

And here, not irrevelantly, may be su* 
peradded, (as might many others of the pre- 
ceding character in illustration, ) the follovv'ing 
maxim of Vattel ; that neither the one nor 
other contracting or interested powers or par- 
ties, has a right to interpret the act at his plea- 
sure. For if you are at liberty to give my 
promise whatever sense you please, you will 
have the power of obliging me to do whatever 
you have a mind, contrary to my intention, 
and beyond my real engagement ; and reci- 
procally, &c." (Lib. 2. sec. 265.) • 

The preceding authorities would evince, 
that in the interpretation of contracts and of 
all acts whatsoever, what, by the intention of 
the parties may be presumed to be contemplat- 
ed or to have been contemplated, at the period 
of contract or engagement ; or what, by the 
general tenor of the act, and of explanatory 
concurrencies, can reasonably be assumed as 
a fundamental basis, shall, in defiance of any 
E 



( 34 ) 

casual modification of term, deficiency of ex- 
pression or ambiguity, by equitable construe- 
tion be adopted as the tenor of engagement by 
the parties. 

Adjudications in courts of equity for spe- 
cific performance of contract, have their ge- 
neral principles so firmly established, that it is 
deemed superfluous to be quoting authorities. 
They are numerous and decisive — that a con, 
tract deliberately entered into, and bona fide 
complied v.ith on one side, shall be sped- 
ficaJly enforced; and that a claim in equity 
arising upon an antecedent purchase, is pre- 
served against a subsequent purchaser with 
notice, and it is presumed would defeat such 
subsequent purchase also, if united with pos- 
terior legal title in a third person. 

It is presumed, that in whatever point of 
view the claim of the Virginia company is 
placed, the result will be the same, that they 
did bona fide fulfil their contract and entitled 
themselves to the benefit of it ; and they can 
suggest no reason why ^ specific performance 
on the part of the state was not complied with, 
after two payments in paper currency of the 
then circulation had been received by the trea- 
surer and receipted for, and the balance due 
tendered, unless a resolution of the legislature 
of that state, passed the 11th of June, 1790, 
directing their treasurer to receive only gold 
and silver and paper medium, after a certain 
Vime in August following in payment, might 
have had influence thereupon. 

It does not appear, as your memorialists 
have understood, that any provision has been 
made by the honorable the legislature of Geor- 
^^ia. for tl^ redemption of the certificates ten- 



{ 35 ) 

dcred as stated. Your memorialists had an 
opportunity of subscribing' a great many of 
those papers, which have not only been at, 
but above par, but kept them together, ex- 
pecting from time to time to pay them when- 
ever the legislature of Georgia might think 
proper to direct their grant to issue, until such 
opportunity for subscription was lost, and at 
this day many of those certificates remain in 
the hands of individual members of the com- 
pany. 

It may be proper to state, that the Virgi- 
nia Company directed suit to be instituted in 
the supreme court of the United States, and 
paid fees to counsel, but the same was suf- 
fered to be discontinued after the passing of 
the act of Georgia in 1796, rescinding that of 
1795 ; and the amendment to the constitution 
as to the suability of states. 

The resolution before your honorable 
house, contemplates that the late commission- 
ers should proceed finally to adjust the various 
claims. Your memorialists feel themselves in 
an inexpressibly embarrassed situation. With 
the deepest veneration and respect for those 
most honorable characters, your memorialists 
must state the awkward situation in which 
they must be placed in exhibiting their claim 
before those who have already reported a de- 
cision, as well upon the claims derived under 
the act of 1789, as those of 1795. That the 
former have no equity, that the title of the lat- 
ter cannot be supported, but that they recom- 
mend a resolution in favor of the latter, em- 
bracing nearly the whole of the reservation, and 
entirely excluding the former from any reason, 
able participation with them. 



( ^6 ) 

It is humbly submitted whether commis. 
sioncrs would proceed (unless specially autho- 
rised) but upon evidence competent in a court 
of law or equity, and whether from the nature 
of the equitable dispensation to be made a- 
mongst the claimants by this honorable house, 
inferior testimony carrying with it rational 
conviction to the mind will not be deemed 
competent. 

Your memorialists state, that besides their 
loss of the specific subject which they humbly 
presume they have shewn themselves well en- 
titled to, their expense, sacrifice made of pro- 
perty, immense fatigue, and personal hazard 
in exploring the country, loss by certificates, 
and (expense in making arrangements for ex- 
tinguishing Indian claims, has gone far in 
impairing the private fortune of individual 
members. 

Your memorialists pray this honorable 
house will consider the subject matter of their 
memorial, and recognize their right to such 
reasonable participation with other claimants, 
either in the ratio that the quantity of land 
which your memorialists may have shewn 
themselves entitled to, bears to the whole 
quantity claimed, or such other mode of 
relief, and in such proportion with others, as 
the justice and equity of their case may enti- 
tle them to ; and your memorialists, as in duty 
bound, shall pray, &^c. 

Wm. cowan, 

t* Agent on behalf of the Virginia Tazoo Companv, 



